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Lack of ex-ante merger control in Luxembourg

In a judgment rendered on January 25, 2021 [1], the Administrative Court rejected the appeal brought by the Fédération des Artisans against the decision of the Competition Council of March 15, 2019 [2] having rejected its complaint mainly concerning the takeover of the company Paul Wagner & Fils SA by company Encevo SA.

The Administrative Court considered in particular that the new elements concerning public contracts and presented for the first time before it by the Fédération des Artisans could not be taken into consideration, indicating however the possibility of seizing the Competition Council on the basis of facts new.

The Administrative Court ruled for the first time on merger control under Luxembourg law and on the powers of the Competition Council. Indeed, it should be noted that Luxembourg competition law does not provide for autonomous merger control. The Court thus considers that the Competition Council does not have jurisdiction to carry out purely preventive merger control, but only on the basis of concrete elements (concrete abuses) and within the framework of its mission of monitoring compliance with the provisions relating to abuse of a dominant position.

To fill this obvious gap in the legal arsenal available to the Competition Council, it would be desirable for the legislator to amend bill no. 7479 [3], on the organization of the National Competition Authority and repealing the law of October 23, 2011 relating to competition, currently in progress in order to finally provide the Luxembourg Competition Council with an instrument to carry out preventive control of concentrations.

Our competition team is at your disposal if you need assistance or advice on competition law:

Gabriel BLESER, Partner

Giulia JAEGER, Counsel

Clémence PATTE, Associate

This publication is for general guidance only and does not constitute definitive legal advice.

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